Jewish World Review Jan. 25, 2006 / 25 Teves, 5766

Paul Greenberg

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Conflicted: Federalism v. life

http://www.NewsAndOpinion.com | Talk about mixed emotions: What stand is a columnist like me, who's both pro-life and for states' rights, supposed to take on the U.S. Supreme Court's decision last week in Gonzales v. Oregon ?


That's the case in which the court decided, 6 justices to 3, that Attorney General John Ashcroft went too far when he decided that the Controlled Substances Act of 1970 gave him the authority to effectively overrule Oregon's assisted-suicide law — by ruling that doctors in that state couldn't use certain drugs for that purpose.


On the one hand, which is how opinionators always begin when we're tempted to skirt a hard question, I'm all for federalism. (It used to be called States' Rights before the term lost its credibility after it was regularly used as a cover to violate the constitutional rights of others.) But the underlying principle remains valid: Why not let different states adopt different approaches to divisive issues, and see how they work out?


That way, states could make their own decisions, and great national schisms over volatile issues — like abortion, for example — could be avoided. Clever people, these founding fathers.


It occurs that, if only both sides wouldn't insist on having their way nationally, the whole uproar over Gay Marriage could be handled in the same sane, civilized, state-by-state way. Because not every national question requires the same, national solution.


This is a big country with a lot of small, wonderfully different states. And what is acceptable in New York may not be in Arkansas, Lord knows, while what is acceptable to the voters of Oregon, like assisted suicide, may be anathema elsewhere.


If we can set out to teach Sunnis, Shia and Kurds the advantages of a federal system, why not use it at home to deal with our own cultural divides? Live and let live, and all that.


Federalism offers another advantage besides a civil accommodation on disruptive social issues: The states, as the Venerable Brandeis famously said, are laboratories of democracy. Let them experiment.


Ah, but on the other hand, suppose one of those laboratories turns out to be Dr. Frankenstein's, and it's experimenting with a moral monstrosity? Live and let live is one thing, but what about kill and let be killed? As in Oregon's assisted-suicide law.


For all the high-minded sound of it, federalism, like the slogan of States' Rights before it, could wind up covering something very low. Which is what worries groups like Not Dead Yet that represent Americans with disabilities. Is euthanasia to be the next great Choice, as in Freedom of?


Oregon may be only the beginning of a "Soylent Green" world in which the aged and disabled, or just those labeled undesirable, are wrapped in soothing music and put to death surrounded by beautiful images of life.


Oregon is only one state, we are assured. Yeah, and at first legalized abortion wasn't going to be any big deal, either. Lest we forget — and it's easy to — Roe v. Wade was also going to be modest in its reach when it was handed down on Jan. 22, 1973.


No less an authority than the author of Roe v. Wade, Mr. Justice Harry Blackmun himself, confided in a private memo that the court was not creating "an absolute right to abortion." His naive interpretation of what he and his colleagues had wrought was echoed publicly by Chief Justice Warren Burger: "Plainly, the court today rejects any claim that the Constitution requires abortion on demand."


Forgive them, Father, for they knew not what they had done. In the decades to come, abortion would become the most divisive, corrosive and sustained of national issues.


It still is. Far from an exceptional procedure, it has become a common form of birth control — even population control. Eugenics is back, only under a different name: Freedom of Choice.


It's not federalism that is to blame for this country's great political, social and moral divide over abortion. We have come this far down the slippery slope precisely because the Burger Court declined to leave the issue to the states. It nationalized the abortion issue, and the whole, rancorous dispute over abortion with it. Rather than resolve the issue once and for all, the court succeeded only in inflaming it.


The continuing furor over Roe v. Wade is not a product of federalism but an example of what can happen when that guiding principle is abandoned. Instead of being allowed to act as safety valves for public discontent, those 50 state laboratories of democracy were bypassed.


The result: Not since Dred Scott, which was going to end the controversy over slavery with a single ruling from the Supreme Court, has a decision so agitated the political process. (As has been said before, we learn from history how little we learn from history.)


All of which is why Justice Anthony Kennedy's opinion for the majority last week in Gonzales v. Oregon comes across as eminently sensible — and calming.


To have allowed the attorney general of the United States to ban assisted suicide everywhere in the country would only have agitated the issue. Particularly if that decision rested on a law — the Controlled Substances Act — that was mainly intended to control the use of illegal "recreational" drugs like marijuana, not prevent suicide. Surely death has not yet become a recreational activity in this country.


Once again, Mr. Justice Kennedy has found in the plain sense of the law and in the ordinary meaning of words a safe path through an emotional minefield.


And once again, The Hon. Antonin Scalia proved more clever than cogent in his dissent. On such occasions, his ideology tends to override his legal principles, which used to include federalism. I'm disappointed, but scarcely surprised.


I am surprised to see the usually principled-to-a-fault Clarence Thomas follow in Brother Scalia's turbulent wake.


In the past Mr. Justice Thomas has been downright Madisonian in his dedication to limiting the federal government's intrusions into the states' proper constitutional sphere. But now he seems to have given up on stemming the tide of federal power. What has happened to his previous objections? All that, he writes in a sad, bitter concurrence, "is now water over the dam."


Nor is it a happy augury to see the new chief justice, John Roberts, go quietly along with this abandonment of federalist principle. What ever happened to the independent Judge Roberts whom the nation saw during his confirmation hearings? He seems to have been replaced, at least in this early test, by a chief justice who just rubberstamps whatever Justice Scalia says.


It's enough to bring back what vaguely troubled about Sam Alito's law during his confirmation hearings: Beyond his evident case-by-case expertise, and his winning lack of pretension, does Judge Alito have any guiding philosophy, any unifying vision of the law, besides executive power? He may be backed by the Federalist Society, but is he a federalist?


Much as some of us may deplore the decision of Oregon's voters to legalize and even aid and abet suicide, we ought to respect it. Or federalism would be reduced to an empty word. Instead, it remains the best way yet found to quiet discord in a democracy, and let those people most affected by a decision, in this case the people of Oregon, make it.


Besides, if Oregon is allowed to go its own way on such a momentous question, perhaps the rest of us will be allowed to do the same. The state we save, and the life, may be our own.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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